This was the case even though he was discharged without conviction and his name and the details of his offending were suppressed. We see this case as being a significant expansion of the duty of good faith for employees, particularly in situations of alleged criminal conduct.
ASG was employed by Otago University as a Security Officer. As a result of a domestic incident, he was charged with wilful damage and assault. When he appeared in the District Court he pleaded guilty to the offences, but was granted a discharge without conviction, and a non-publication order was made. This occurred because the District Court Judge agreed that there was a strong possibility that ASG could lose his job.
However, a representative of the University was in Court that day and noted down what he heard. He then took legal advice which said he could communicate the information he heard to the University because it had a legitimate interest in knowing about the details which could be relevant to ASG’s job. The University subsequently commenced a disciplinary process which led to ASG being suspended and later receiving a final written warning.
After earlier hearings in the Employment Relations Authority and the Employment Court, the Court of Appeal held that it had “no doubt” that ASG should have disclosed his pending criminal charges to the University. The Court also said that even though ASG did not disclose these facts, the University was entitled to act as it did and the representative disclosing the information to the University was not a breach of the non-publication order. The Court said it was not a “publication” because “publication” meant dissemination to the world at large not provision of information to people who had a “genuine interest” in knowing the information.
The Court said that the University had a “genuine interest” in knowing about the information so that it could consider whether ASG was able to continue to perform his role, and in doing so would not undermine the University’s trust and confidence in him.
We understand ASG has filed an application for leave to appeal to the Supreme Court, so it may be that this is not the last word on the issue.
However, the case does show that employees may well be required to inform their employers about pending criminal matters if the criminal matters involve behaviour which could genuinely impact upon their ability to do their job or undermine their employer’s trust and confidence.
What it also shows is that if an employer has any doubt about the scope of a non-publication order it is essential to get legal advice to ensure that it isn’t breached.